The defendant sought leave to appeal against an order disallowing his use of a stretch of the River Wye for his boat which he wanted to use as a floating restaurant. The claimants were an angling association who claimed that his use infringed a deed granting them angling rights. The judge had found that though there was a navigation right, the use was a substantial interference with the fishery, and was not for the purpose of navigation. Judgment had eventually been obtained by default.
Held: The judge may have applied the wrong test when refusing an adjournment ‘in considering whether there was an arguable defence before deciding whether to grant an adjournment, when the purpose of seeking the adjournment was to have time to seek and put before the court the material to suggest that there was an arguable defence. ‘ Did the defendant have an arguable defence? The answer was yes, and the judgment was set aside.
Citations:
[1997] EWCA Civ 987
Jurisdiction:
England and Wales
Citing:
Cited – Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc The ‘Saudi Eagle’ CA 1986
The defendants, believing that they had no assets, deliberately allowed an interlocutory judgment for damages to be assessed to be entered against them by default, and only after damages had been assessed and final judgment entered, realising that . .
Lists of cited by and citing cases may be incomplete.
Land, Litigation Practice
Updated: 12 April 2022; Ref: scu.141383